[Winstonm]

kenberg, on 2023-March-16, 08:52, said:

I will give my own take on this. We have state prisons because there are state laws and we have federal prisons because there are federal laws. Most people accept that some matters should be dealt with by state law or county law or such, and other matters should be dealt with at the federal level. When I was in high school, class of 56, there was a great deal of discussion about federal aid to education. The worry was that if the feds started funding education they would also exert control over the curriculum. Views change as to which should be federal and which should be state-funded and controlled.

So the question could be: When we look at other areas of regulation, is abortion akin to other federally regulated matters or more akin to other state regulated matters? My legal knowledge is too scant for me to confidently answer this. I think that before Roe v Wade abortion was treated as suitable for state regulation rather than federal, but as mentioned above, views change. As I mentioned earlier, a problem with having it be federal is that it could then go either way. Maybe a woman could then get an abortion in any state. but also maybe she could then get an abortion in no state.

Thank you for your comment. I like your take on this. There is no doubt a feferal law could go either wsy. At least there would be consistency. With states, an action could be legal in one state and a crime in another.

This is one of the brilliancies of the Constitution in that it made federal law superior to state laws so that obvious unconstitutional laws or state laws based on biases of states could be rectified federally.

[Czbornik]

shyams, on 2023-March-15, 14:23, said:

It might be that the Legislature in the USA shirks away from its responsibility to legislate, especially on controversial issues. It seems they prefer to use wedge issues to raise bucketloads of political donations (and consequently get reelected) than to resolve said wedge issues.

By Jove, I think you have broken the code!

[Czbornik]

Winstonm, on 2023-March-15, 21:26, said:

Can you explain why Florida or Texas should treat the same woman differently than say New York due to her address?

What Kenberg said.

[Winstonm]

Czbornik, on 2023-March-16, 18:22, said:

What Kenberg said.

If you agree with Ken, then you agree that Texas for example can make any action of receiving or performing an abortion a felony and the government of Texas should control the personal decisions of an individual.
It doesn’t matter your personal views about abortion; if you support state rights then you support the scenario I describe.

But why stop there? Why not county option? Or city? Or school districts? How about each household makes their own law?

Facetious? Sure, to a degree. But take note that most state law has a companion federal law so the idea of each state being radically different is a red herring.

The genuine issue is whether the state lawmakers are injecting their religious beliefs into abortion laws, which is clearly unconstitutional.

[kenberg]

A major part of what I was saying is that I find the legal situation very confusing. I am about to play some bridge, but I hope to get back to this later. History, law, and philosophy make for muddy waters.

[kenberg]

A question: What are some examples of federal laws that make it illegal for states to make something illegal? I am guessing that there are some, but I am also guessing that some restrictions apply. For example, could states be forbidden to make dog racing illegal? Or take an example from my childhood. I grew up in an area of St. Paul where taverns could only sell beer that had at most 3.2 percent alcohol. If you wanted 6 percent beer you had to pick a tavern a mile or more away. Could the federal government forbid cities from carving out areas such that 6 percent beer was legal in some areas but only 3.2 percent was legal in others?

The point is this: Would a national law that forbade a state from making abortion illegal in that state survive a challenge? I really do not know the answer, but I am guessing it would be tricky. The bill would have to be crafted with care by experts on Constitutional Law if it can work at all. Of course I realize that abortion is very different from the other examples I cite but my question still lingers. One approach would be to say that the law forbidding states to make abortion illegal protects an essential human right. The problem is that as of now, SCOTUS says women do not have this essential human right.

It's not a matter of liking this, I don't like this. I am having trouble seeing the path forward.

[Winstonm]

The answer to your question is yes, Congress can pass laws that make dog racing or discriminating against 6.0 beer illegal, but the bill would have to be signed by the president, after which it supersedes state law until challenged in the the courts where the SCOTUS may hear the case and find it to be unconstitutional.

The real issue of any law is this: it requires the ability and the willingness to enforce otherwise it is meaningless. The feds chose to enforce prohibition; they have decided to ignore marijuana.

[kenberg]

Winstonm, on 2023-March-17, 12:01, said:

The answer to your question is yes, Congress can pass laws that make dog racing or discriminating against 6.0 beer illegal, but the bill would have to be signed by the president, after which it supersedes state law until challenged in the courts where the SCOTUS may hear the case and find it to be unconstitutional.

The real issue of any law is this: it requires the ability and the willingness to enforce otherwise it is meaningless. The feds chose to enforce prohibition; they have decided to ignore marijuana.

I was not asking if Congress can make dog racing illegal. I was asking whether Congress could successfully keep states from making it illegal.
Imagine that Congress favors having dog racing but some state, Minnesota seems a likely candidate, would like to make it illegal. Can Congress prevent Minnesota from making dog racing illegal in Minnesota? It's sort of a legal double negative, a Congressional law saying that states cannot pass a law that says people cannot have dog races.

My guess is that Minnesotans would then say "Look, we are opposed to dog racing, we have good reasons for being opposed to dog racing, and so we should have the right to make dog racing illegal." Congress says "No, you cannot make dog racing illegal, we have passed a law that forbids you to make dog racing illegal." It goes to court. Who wins?

More generally: Congress passes a law (with the presidential signature) saying that no state is allowed to make activity X illegal in its own state. States that wish to make activity X illegal in their state go to court. Who wins? This might well depend on what activity X is and on just how the law was written. When can the national government successfully prevent states from passing a law making activity X illegal in their state?

Congress passes a law: No state is allowed to make activity X illegal in their state.
A state passes a law making activity X illegal in that state.
Having X be dog racing makes the argument less intense (unless you are a dog).

Any lawyers out there reading this?

[Winstonm]

kenberg, on 2023-March-17, 14:24, said:

I was not asking if Congress can make dog racing illegal. I was asking whether Congress could successfully keep states from making it illegal.
Imagine that Congress favors having dog racing but some state, Minnesota seems a likely candidate, would like to make it illegal. Can Congress prevent Minnesota from making dog racing illegal in Minnesota? It's sort of a legal double negative, a Congressional law saying that states cannot pass a law that says people cannot have dog races.

My guess is that Minnesotans would then say "Look, we are opposed to dog racing, we have good reasons for being opposed to dog racing, and so we should have the right to make dog racing illegal." Congress says "No, you cannot make dog racing illegal, we have passed a law that forbids you to make dog racing illegal." It goes to court. Who wins?

More generally: Congress passes a law (with the presidential signature) saying that no state is allowed to make activity X illegal in its own state. States that wish to make activity X illegal in their state go to court. Who wins? This might well depend on what activity X is and on just how the law was written. When can the national government successfully prevent states from passing a law making activity X illegal in their state?

Congress passes a law: No state is allowed to make activity X illegal in their state.
A state passes a law making activity X illegal in that state.
Having X be dog racing makes the argument less intense (unless you are a dog).

Any lawyers out there reading this?

Who wins? Federal law is superior to state laws.

But I see what you are getting at- kind of similar to proving a negative. Can the feds pass laws of what is legal rather than
defining what is illegal.

Sounds more like an amendment might be necessary to codify that right nationally. But I am unsure.

Edit: my daughter who is an attorney pointed out the Defense of Marriage Act that barred states from providing benefits to same sex couples that were available to other married couples.

[Czbornik]

Winstonm, on 2023-March-16, 19:36, said:

If you agree with Ken, then you agree that Texas for example can make any action of receiving or performing an abortion a felony and the government of Texas should control the personal decisions of an individual.
It doesn’t matter your personal views about abortion; if you support state rights then you support the scenario I describe.

But why stop there? Why not county option? Or city? Or school districts? How about each household makes their own law?

Facetious? Sure, to a degree. But take note that most state law has a companion federal law so the idea of each state being radically different is a red herring.

The genuine issue is whether the state lawmakers are injecting their religious beliefs into abortion laws, which is clearly unconstitutional.

I respect your opinion. I hope you will forgive me for not sharing it.

[Winstonm]

Czbornik, on 2023-March-17, 19:06, said:

I respect your opinion. I hope you will forgive me for not sharing it.

Thanks. I am actually trying to grasp you position.
It’s not a matter of respect. I am trying to understand your why: why do you think it is better to have each state create their own laws regarding abortion instead of a federal law that applies to all the states equally?

If you look at the topic of federalism you will see the original intent was for federal law to apply in areas that affected the entire nation. Abortion is not a state issue but a national issue.

[barmar]

Winstonm, on 2023-March-17, 20:46, said:

Abortion is not a state issue but a national issue.

If abortion should be a national issue, why not murder, armed robbery, kidnapping, etc.?

Theoretically, national laws should only be used for inter-state issues. E.g. kidnapping is normally a state felony, but if you take the victim across state lines it becomes federal.

The 10th Amendment gives Congress the power to restrict state laws, so it can prohibit states from passing laws regarding abortion. Congress also uses the power of the purse in many situations -- they can hold back federal subsidies from states that don't pass certain laws (I think that's how national "right on red" was achieved).

[kenberg]

barmar, on 2023-March-18, 07:04, said:

If abortion should be a national issue, why not murder, armed robbery, kidnapping, etc.?

Theoretically, national laws should only be used for inter-state issues. E.g. kidnapping is normally a state felony, but if you take the victim across state lines it becomes federal.

The 10th Amendment gives Congress the power to restrict state laws, so it can prohibit states from passing laws regarding abortion. Congress also uses the power of the purse in many situations -- they can hold back federal subsidies from states that don't pass certain laws (I think that's how national "right on red" was achieved).

Thanks, this is the sort of thing I was asking about. From a legal viewpoint, it does seem hard to see abortion as a national issue. Of course, it is of concern throughout the nation but that, on its own, does not mean that it is subject to Congressional control. And your "right on red" example is in the same ballpark as my comment about concerns in the 50s that federal funding for education might lead to federal intrusion into the curriculum. Sort of a back door to control: First fund something, then threaten to cut off funding unless, well, unless something.

But about the 10th amendment and the power to restrict state laws:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


I am not seeing this as giving Congress the right to restrict state laws. It seems to go in the opposite direction. And this would explain why the back door approach gets used.


Mostly, as I said, it seems tricky.

[Winstonm]

barmar, on 2023-March-18, 07:04, said:

If abortion should be a national issue, why not murder, armed robbery, kidnapping, etc.?

Theoretically, national laws should only be used for inter-state issues. E.g. kidnapping is normally a state felony, but if you take the victim across state lines it becomes federal.

The 10th Amendment gives Congress the power to restrict state laws, so it can prohibit states from passing laws regarding abortion. Congress also uses the power of the purse in many situations -- they can hold back federal subsidies from states that don't pass certain laws (I think that's how national "right on red" was achieved).

Yes. if is called federalism. Issues that are internal to a particular should be state laws.
Btw, there are USC now for homicide and kidnapping and the issue becomes one of jurisdiction.

[kenberg]

I was wondering about federal murder charges. I found the following on the web:

https://www.greenspu...deral%20crimes.

A partial list:

--Elected or appointed federal government official.

--A murder committed to try to influence the outcome of a federal court case

--A murder committed during a bank robbery.

The first two are obviously linked to federal activity, and the listed source explains that the third is because bank robbery is a federal crime. I think, although I do not see it on the list, that sometimes a murder can be prosecuted under federal civil rights laws. But everything I have found requires some link to other federal issues. I have not found a federal law saying something like "You cannot murder someone, that's that". Murders that are simply murders, eg A shoots B because A is mad at B, are all left to state law as near as I can tell.


Federalism, as a philosophy, goes back to the early days. And no doubt legal interpretations have changed. But I am still not seeing the legal basis for a federal law that prohibits states from making dog racing illegal. Abortion is more complicated legally than dog racing, but I am not so clear on whether federal law could prohibit states from prohibiting abortion (within their state of course). At the very least, I think the law would require very careful writing by people who have a strong grasp of just how fed law can compel states, and how it cannot. The 10th Amendment seems like a barrier. Maybe not an insurmountable barrier, but a substantial barrier.

I guess that what I am saying comes to this: If Congress passes a law saying that states cannot abolish abortion, and if the president signs it, and if a Constitutional challenge is made, I think even moderate justices might have trouble upholding the law.

[Winstonm]

FYI

18 USC Ch. 51: HOMICIDEFrom Title 18—CRIMES AND CRIMINAL PROCEDUREPART I—CRIMES
CHAPTER 51—HOMICIDE
Sec.1111.Murder.1112.Manslaughter.1113.Attempt to commit murder or manslaughter.1114.Protection of officers and employees of the United States.1115.Misconduct or neglect of ship officers.1116.Murder or manslaughter of foreign officials, official guests, or internationally protected persons.1117.Conspiracy to murder.1118.Murder by a Federal prisoner.1119.Foreign murder of United States nationals.1120.Murder by escaped prisoners.1121.Killing persons aiding Federal investigations or State correctional officers.1122.Protection against the human immunodeficiency virus.<br class="Q04">


Editorial Notes

Amendments
1996—Pub. L. 104–294, title VI, §601(a)(6), Oct. 11, 1996, 110 Stat. 3498, added item 1122.

1994—Pub. L. 103–322, title VI, §§60005(b), 60009(b)(2), 60012(b), 60015(b), Sept. 13, 1994, 108 Stat. 1970, 1972-1974, added items 1118 to 1121.

1976—Pub. L. 94–467, §3, Oct. 8, 1976, 90 Stat. 1998, substituted "official guests, or internationally protected persons" for "or official guests" in item 1116.

1972—Pub. L. 92–539, title I, §102, Oct. 24, 1972, 86 Stat. 1071, added items 1116 and 1117.


§1111. Murder
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.

© For purposes of this section—

(1) the term "assault" has the same meaning as given that term in section 113;

(2) the term "child" means a person who has not attained the age of 18 years and is—

(A) under the perpetrator's care or control; or

(B) at least six years younger than the perpetrator;

<br class="Q04" style="font-family: Arial; font-size: 14.4px;">(3) the term "child abuse" means intentionally or knowingly causing death or serious bodily injury to a child;

(4) the term "pattern or practice of assault or torture" means assault or torture engaged in on at least two occasions;

(5) the term "serious bodily injury" has the meaning set forth in section 1365; and

(6) the term "torture" means conduct, whether or not committed under the color of law, that otherwise satisfies the definition set forth in section 2340(1).

(<a href="https://uscode.house.gov/statviewer.htm?volume=62&page=756" target="_blank" style="color: rgb(15, 13, 97); text-decoration-line: none;">June 25, 1948, ch. 645, 62 Stat. 756; Pub. L. 98–473, title II, §1004, Oct. 12, 1984, 98 Stat. 2138; Pub. L. 99–646, §87©(4), Nov. 10, 1986, 100 Stat. 3623; Pub. L. 99–654, §3(a)(4), Nov. 14, 1986, 100 Stat. 3663; Pub. L. 100–690, title VII, §7025, Nov. 18, 1988, 102 Stat. 4397; Pub. L. 103–322, title VI, §60003(a)(4), Sept. 13, 1994, 108 Stat. 1969; Pub. L. 108–21, title I, §102, Apr. 30, 2003, 117 Stat. 652.)


Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., §§452, 454, 567 (Mar. 4, 1909, ch. 321, §§273, 275, 330, 35 Stat. 1143, 1152).

Section consolidates the punishment provision of sections 454 and 567 of title 18, U.S.C., 1940 ed., with section 452 of title 18, U.S.C., 1940 ed.

The provision of said section 454 for the death penalty for first degree murder was consolidated with section 567 of said title 18, by adding the words "unless the jury qualifies its verdict by adding thereto 'without capital punishment' in which event he shall be sentenced to imprisonment for life".

The punishment for second degree murder was changed and the phrase "for any term of years or for life" was substituted for the words "not less than ten years and may be imprisoned for life". This change conforms to a uniform policy of omitting the minimum punishment.

Said section 567 was not included in section 2031 of this title since the rewritten punishment provision for rape removes the necessity for a qualified verdict.

The special maritime and territorial jurisdiction provision was added in view of definitive section 7 of this title.

[Czbornik]

I will leave this conversation with these thoughts:

1. I have read the entire Constitution of the United States at least three times.
2. I have read the 14th Amendment more than that.
3. I have read nothing in either of them that grants a woman the "right" to an abortion.
4. I have no problem with "my body, my choice".
5. "My choice" should also include "my consequences".
6. Neither the states nor the feds should outlaw abortion outright. If it's available, it should be available (with limits).
7. Neither I nor any other taxpayer should have to pay for it. If a woman makes the "choice" she (or her sperm donor) should be prepared to pay for the consequences except for cases of rape or incest.

[Winstonm]

There is also nothing in the constitution that says the SCOTUS is the arbiter of what is or is not constitutional- that was established by case law.

The law is much more nuanced than most understand.

[awm]

The US Congress has the power to pass laws interpreting and enforcing the US Constitution -- despite the modern trend to view the Supreme Court as the arbiter of the Constitution, this power has traditionally belonged to all three branches of government.

So for example, the US Congress could state that despite the inclusion of the word "soldier", the third amendment actually forbids the government (state or federal) from requiring people to quarter anyone in their home. This would forbid the government from requiring people to house police officers, or tax collectors, or Ukrainian refugees, etc. It would also forbid the government from requiring a woman to house an unwanted fetus in her body.

Or the US Congress could state that the fourth amendment protection against "unreasonable search and seizure" applies to any search of a uterus, and that any law requiring government knowledge of the contents of a uterus is thus unenforceable and void.

Or the US Congress could encode the "right to privacy" as implied by numerous amendments (but not explicitly in the text of the Constitution) and pass laws to defend it.

Of course, this particular Supreme Court has shown an inclination to ignore laws and precedents and the Constitution itself in ruling for its desired outcome, so the legal grounding of any law passed by Congress may not matter unless the President decides to start ignoring ridiculous rulings coming out of the Court (leading to a likely crisis).

[Winstonm]

Czbornik, on 2023-March-19, 18:07, said:

I will leave this conversation with these thoughts:

1. I have read the entire Constitution of the United States at least three times.
2. I have read the 14th Amendment more than that.
3. I have read nothing in either of them that grants a woman the "right" to an abortion.
4. I have no problem with "my body, my choice".
5. "My choice" should also include "my consequences".
6. Neither the states nor the feds should outlaw abortion outright. If it's available, it should be available (with limits).
7. Neither I nor any other taxpayer should have to pay for it. If a woman makes the "choice" she (or her sperm donor) should be prepared to pay for the consequences except for cases of rape or incest.

Btw, I agree with each point.